There are
some forms of harassment that are not necessarily viewed as harassment in the
traditional sense. They are viewed as something altogether separate, although
there may be enough characteristics for it to be clearly recognized as
harassment. In this case, it's retaliation and there are certain circumstances
in which it occurs that make it rather unique compared to other types of
harassment. This article will look at retaliation in the workplace and its legal
standing as a form of harassment. Additional topics will include statistical
information, the circumstances that cause it to happen, and what actions can be
taken to prevent it from occurring.

What Is Retaliation?

Retaliation is a specific
type of harassment that usually occurs in response to a complaint made by the
victim against their harasser. Basically, whoever the complaint was directed at
is attempting to punish the person who made the complaint and possibly even
intimidate them into withdrawing it.1 A lot of the time, the
harasser and target of the complaint is someone who is above the
reporter/victim in the business' hierarchy, but it can also happen with co-workers
who are of equal seniority. If the harasser is someone who is the victim's
junior in the business, the circumstances are usually unique to the situation.
It's not entirely unusual, but there normally is some kind of power/hierarchy
dynamics involved that makes retaliation a somewhat successful kind of
harassment on the part of the harasser.

In order for an instance of
harassment to qualify as retaliation, there needs to be some evidence that it's
an adverse action to something that the employee being targeted did. If they
filed a complaint against a specific person or against their employer, or even
if they reported the business for something like a safety violation to OSHA
(The Occupational Safety and Health Administration), and the harassment began
shortly after then it's likely that it's a case of retaliation. In instances
where harassment was already occurring-and was possibly the reason for the
complaint in the first place-then it may be a bit difficult to prove that
retaliation is going on if the harassment simply continues. Looking for things
in the harassment that is already going on, like an increase in frequency or
severity, may indicate that the harasser has learned about the complaint and is
retaliating against the victim for it.

Instances of retaliation can
appear similar to other instances of harassment. Additional actions that are common to retaliation include demotions, salary
reduction, transfer (e.g. to a different department), negative job performance
evaluations, altered duties or assignments, and disciplinary measures.2 Anything
that could be interpreted as a unexplained change in the terms of the victim's
employment could be viewed as a sign of retaliation if the timing matches. Look
at any possible evidence closely before labeling it as retaliation, as some
employers may take action that can be interpreted as retaliating by accident.3
Attempts to reduce the harassment by separating the victim from their
harasser while the allegations are investigated, while done with good
intentions, can be misinterpreted as an act of retaliation (think of
transfers).

Another sign of retaliation
is termination of employment. While employers technically do not need to
provide a reason for firing someone by law, their motivations for doing so
cannot be based in discriminatory or retaliatory reasons.4 Wrongful
termination is illegal and can effectively be used in retaliation claims and lawsuits
as the reasoning is usually revealed during the case, usually through the
employer's own disclosure or through the discovery of evidence supporting
retaliation or discrimination as the cause of termination.

Legal Elements

Retaliation is deemed illegal
on the federal and state levels, although the finer details of the laws
applicable to the location and/or circumstances can vary. There are quite a few
laws relating to retaliation regarding harassment and whistleblowing-or
reporting violations committed by the business to the proper authorities-so
it's rather well covered.5 They stand on their own as individual
laws, but there are some that are tied to anti-discrimination and
anti-harassment laws to provide full protection for workers who may be affected.
The laws themselves are non-discriminatory, and are applicable to all
industries, professions, and workers without exception.

On the federal level, the
primary force that enforces anti-retaliation laws is the Equal Employment
Opportunity Commission (EEOC). The agency also is the one that establishes the
laws and guidelines regarding retaliation and harassment that all employers are
expected to adhere to.6 In 2016 the EEOC updated their guidelines
for the first time since 1998, with new standards for proving claims of
retaliation that critics have deemed a bit too broad by definition.7 At
this point, it's unclear if this legal change is as problematic as those
critics fear but time will tell in the long-run.

There are also state-level
agencies in each state that are able to process retaliation claims and enforce
the laws. Many of them will partner and work with the EEOC on cases, but they
are largely going to retain their independence from each other. The inclusion
of a state-level agency can assist in any laws that are present in that state
that may add to or deviate from the federal laws. Identifying what agency or
laws operate in your state can be done through a simple internet search (i.e.
"state" + "retaliation").

Prevalence

Most experts agree that
retaliation is one of the most prevalent forms of harassment to be both
recognized and questioned, and that will most likely continue to be the case. In
recent years, claims of retaliation have increased along with other forms of
harassment. Of the 89,385 discrimination and harassment charges that the EEOC
received in 2015, 44.5% were tied to retaliation.8 Based on records
the EEOC has collected, the numbers have been steadily rising over a nearly
twenty year period; 18,198 cases reported in 1997 through to 42,018 in 2016.9
Keep in mind that those numbers are only what was reported to the EEOC;
there could possibly have been more cases that were simply not reported to
officials. There also may have been civil suits where the EEOC was not involved
regarding retaliation-related allegations.

To break down the data
further, nearly all of the claims in each fiscal year recorded reached some
kind of resolution-with multiple outcomes in some cases. 2016, for example, saw
over 44,000 resolutions with 1,245 (2.8%) finding reasonable cause behind the
allegations and 28,620 (64.9%) that did not. While that information may give
critics motivation to justify their concerns about the EEOC's expanded
guidelines, it is possible that those 28,000-plus cases simply did not have
enough evidence. The data should not be taken as a sign that the system is
flooded with fake allegations of retaliation, or that making an allegation is a
waste of time. There were over 3,200 instances, or 7.4%, where a settlement was
reached without going through the full run of the court system. 2016 also saw
resolutions where there were withdrawals with benefits (2,739 or 6.2%) and
administrative closures (8,248 or 18.7%) that did not go through the court
system either. While there may be instances where an allegation of retaliation
is false or based on misinformation, there are still plenty that are legally
legitimate and should be treated as such regardless.

Financially, the monetary
benefits through fines and restitutions for victims totaled upwards of $182
million USD for that year-excluding any financial payout that they received
through litigation. Only about 755 or 1.7% of claims failed to come to any kind
of successful conciliation or resolution, although a resolution could have come
about through a lawsuit(s) outside of the EEOC's involvement. It's safe to say
that retaliation actions can be rather expensive for employers, especially when
you consider the legal fees and fines that go to the court during these cases. Since
there has been a steady increase-which is expected to continue, according to
the established pattern thus far-the overall costs associated with retaliation
cases will undoubtedly increase as well.

What Causes It To
Happen?

As stated previously,
retaliation is a response to another person's actions. Those who are retaliated
against usually filed a discrimination charge against their harasser,
complained to them directly, reported misconduct of some kind, or may even have
participated in another discrimination case (e.g. as a witness).10 The
person(s) who any of these actions are directed towards may act negatively or
harmfully in response by retaliating. Whether they realize they are doing so or
not doesn't always matter in the long run, as they still took unjust actions. People
panic and do foolish and idiotic things, but that doesn't retract from the fact
that it was foolish and idiotic from the start.

So why would someone
willingly retaliate? Especially in cases where it's clear that there was
wrongdoing? Often it involves the person's motivation for the initial actions
taken against them. Harassers will see themselves as the ones who are right in
a situation, even if they are clearly not, and will refuse to see things otherwise.
The retaliation in those instances may be an attempt to further convince their
victims of their version of the truth. It could also be an attempt to avoid any
punishment that they realize they may have to face as a result of their actions,
and not necessarily because they feel guilty about what they've done. Like with
employers who accidentally do something that could be interpreted as
retaliation, they are trying to do what they think is right and appropriate for
the situation.

Retaliation could also serve
as a continuation of the harassment that has already, or is already, occurring
between the harasser and the victim. They may be aware that what they are doing
is wrong and simply not care. In a sense, it may be their way of trying to
convince the victim that there is nothing that they can do to stop things from
happening. It is also possible that the harasser may see themselves above the
law, such as in whistleblowing cases where some kind of law or regulation has
already been broken. Taking that into account, there is most likely a healthy
dosage of ego involved regardless of the circumstances.

Looking at the nature of
some retaliation cases and harassment in general, good-old-fashioned
discrimination is a big part of things. Prejudice can be a factor in the
treatment of employees even if it did not stop them from being hired to begin
with. Some of the beliefs that are tied to discrimination are so deeply
ingrained that there are some who really do believe that it's acceptable and
that there is nothing that can be done to stop them by law-or that there
shouldn't be.

Is It Preventable?

Preventing retaliation from
occurring is a responsibility that lies more with employers and the management
of a business than the general employees. As with other forms of harassment,
paying attention and being aware of what is going on in the business is very
important in preventing, identifying, and addressing retaliation. The best part
of that is anyone can do it, and the only hard parts of such a feat is taking
the time to do so and the successful application of the EEOC's guidelines.

One of the best things that
an employer can do to prevent retaliation is establish that it is not going to
be something that is tolerated in the business. Make any anti-retaliation
policies clear and accessible to everyone regardless of ranking, and be sure
that they are in line with the established laws. Training and education can
help as well. Employers can also establish a reporting system for harassment
claims that follows strict confidentially procedures; information is released
on a strictly need-to-know basis and the bulk of the details should be kept
between the reporter/victim(s) and the investigators until actions are taken.11

To avoid any kind of
misinterpretation of actions, employers should really reflect on what they are
doing and why before making any major decisions about an employee. If you are
making a decision that is going to change an employee's status, especially in a
negative way, make sure that you are able to back up that decision with
legitimate reasons. Is there documentation? Are you in line with policies, both
within the business and with the law? Are there personal reasons as to why you
are making this decision? Whatever the decision is and whatever the motivations
are behind it, everything should be clearly established for the sake of
justification and legitimacy.